Rato, Ling, Lei & Cortés Advogados
Rato, Ling, Lei & Cortés – Advogados (Lektou) is a Macau based law firm founded in the 80s of the XX century.Lektou’s more than 25-year history in private and public law in Macau uniquely qualifies it to provide a full scope of legal services and to work cooperatively and in coordination with clients and other professional advisers.
Private Client & Offshore Services
Macau was previously bestowed with an offshore regime boasting a comprehensive list of 20 offshore activities. This initially attracted many businesses, but the allure was greatly reduced after the removal of 12 activities from the list. Just as many began to believe that offshore activity was over, Macau's mandate to become a commercial and trade cooperation service platform between China and Portuguese-speaking countries came into play.
The Legislative Assembly recently approved the legal framework for the exchange of fiscal information in order to align Macau with G20 and EU standards. Law 5/2017 expressly revokes Law 20/2009 and has standardised the exchange of fiscal information within the countries which are parties to the international conventions and treaties to which Macau is also a party. The law therefore aims to avoid double taxation and tax evasion.
Macau's legal regime for real estate rentals is set out in the Civil Code, with specific rules on rental prices. These terms are expected to be improved to cope with the reality of the market. According to the Legislative Assembly, the leasing regime reform provides for further protection and control based on the Civil Code and intends to enhance the local lease market with affordable rental prices.
After its initial introduction to the Macau Legislative Assembly in 2013, the Regime Jurídico do Erro Médico (RJEM) will soon enter into force. The driving forces behind the RJEM's enactment include a lack of knowledge about the occurrence of medical error and the consistency of the liability rules and competent courts. The RJEM is a sensible reaction to the problems and injustice caused by medical error and how it is handled. Hopefully its effectiveness can be proven with experience.
The chief executive of the Macau Special Administrative Region recently delivered the policy address for the 2017 fiscal year. He stated that Macau's economy is developing healthily, public finances are stable and public accounts are continuing to register a surplus. Plans include improvements to social welfare, further investment in the 'one belt, one road' initiative and the establishment of a renminbi settlement platform for trade between China and Portuguese-speaking countries.
Players in Macau are free to access overseas gaming websites on a passive basis; however, betting companies are subject to no regulation and therefore cannot operate within the Macau jurisdiction. While there are no specific penalties concerning remote gambling, there is a risk that the government will consider remote gambling to be an illegal activity in light of new laws.
The government has revamped its regulatory measures regarding the prevention of money laundering and the financing of terrorism. This regulatory trend originated from the mandate of Administrative Regulation 7/2006. The government is sending a clear signal that Macau has renewed its commitment to the prevention of money laundering and the financing of terrorism in line with the Asia Pacific Group on Money Laundering, which will issue a report later in 2016.
The 2007 Mutual Evaluation Report on Macao, China highlighted the absence of asset-freezing mechanisms in the Macau legal system, which were required for compliance with Macau's obligations under resolutions adopted by the UN Security Council in the context of fighting terrorism. The government has now presented a draft law on a legal regime for the freezing of assets to the Legislative Assembly.
The recent rapid growth of Macau's economy, largely based on the gaming industry, has resulted in the highest income per capita in the world. However, the same economic developments have put enormous pressure on the human and social fabric of Macau. The consequences of these economic and social changes have been tentatively remedied by measures announced by Macau's secretary for security.
The new Land Law recently entered into force, revoking and replacing the previous Law 6/80/M. Under the new law, the concession of land is given on a provisional basis and becomes permanent with the use of the land. It is expressly stated that provisional concessions cannot be renewed, except when the land concession is attached to a definitive land concession and both lands are utilised together.
The Macau Economic Department recently issued a set of instructions regarding what should be considered illegal in ads for games of fortune and chance. It remains to be seen whether the instructions will form the basis of a new law or a revision of the existing law. For now, gaming operators may disregard the instructions and continue to develop ads pertaining to their activities.
Macau's rental housing market has always been the subject of lively discussion. Residents are critical of the legal system, which they deem unfair. However, problems do not always arise from the law, but often from market dynamics. A new draft law is nonetheless expected to be presented to the Legislative Assembly in the hope that it will meet tenants' expectations.
The legal IP regime in Macau is governed by the Industrial Property Act. IP rights give rights holders full and exclusive enjoyment, use and disposal of their inventions, creations and distinctive signs within the limits, conditions and restrictions established by law. Macau's patent registration system is territorial; thus, in order to obtain patent protection in Macau, an applicant must submit the application locally.
Investment funds are an important means of furthering economic development by attracting savings and reducing the risk inherent in any investment across a variety of assets held in portfolios. Decree-Law 83/99/M regulates the constitution and operation of investment funds and investment fund management companies. Fund creation is conditional to prior authorisation from the Monetary Authority.
In order to protect Macau's economy from a deceleration that may arise due to its dependence on gaming revenues and increased social spending due to an ageing population, the IMF has proposed setting up a sovereign wealth fund. The allocation of a percentage of public moneys to a sovereign wealth fund, even though it would involve higher risks, might also help to improve economic stability.
Processing personal data in Macau should be conducted in accordance with the Personal Data Protection Act. The law's purpose is to ensure that the processing of personal data is carried out transparently and with strict respect for an individual's privacy. The law also applies to video surveillance, provided that the controller is domiciled or based in Macau.
Due to speedy growth in the gaming and hospitality industries, the Macau Special Administrative Region is reliant on foreign workers. To hire a skilled worker, an employer must prove that the worker has special skills for a specific position and that it is impossible to hire locally. For positions that require no skills or experience, employers should request prior approval from the Human Resources Bureau.
Legislation on arbitration has been in force in the Macau Special Administrative Region since before the handover to China. According to the legal regime of internal arbitration, arbitration may be employed in any dispute that does not respect inalienable rights, provided that the dispute is not submitted by special law to a judicial court or necessary arbitration.
A new Urban Planning Law has been enacted which deals with the objectives and hierarchy of urban plans, but with the prevalence of a master plan to establish strategic guidelines for the entire Macau Special Administrative Region. The law binds public and private entities to urban plans and determines the responsibility of the Land, Public Works and Transport Bureau for technical assessment of urban planning.
Two recent criminal cases have seen Macau's highest court called to intervene as if it were a first instance court, and publicly voice its desire to change its existing competence. The Law of the Judicial Organisation states that the Macau Special Administrative Region enjoys independent judicial power, including that of final decision. The last instance court has suggested that a review of the basic law should take place.
The purchase and sale of units in buildings under construction is common practice in Macau's real estate market. However, the legal regime for real estate transactions in Macau does not cover buildings under construction. New legislation has therefore been proposed in order to enhance the transparency of transactions, streamline the performance of the market and safeguard the interests of the parties concerned.
Financial activity in Macau is regulated by the Financial System Act. Activity as a financial intermediary requires prior authorisation and must be subject to advice from the Monetary Authority of Macau. All authorised and licensed institutions are bound to a special registration with the monetary authority prior to the commencement of their activities and are subject to its supervision.
Speculation in the housing market has boomed due to Macau's economic development. The government sought to contain this by imposing a special stamp duty on property or property rights transactions; however, it soon became clear that the scope of such duty was too limited. Therefore, a new law seeks to expand the special stamp duty to other forms of property, as well as imposing a new tax on housing transactions.
A new draft law lays down the principles governing the investigation of air accidents and incidents and the processing and protection of air safety information. If passed, it is expected to reduce an already low accident rate, despite the projected increase in Macau's air traffic in the coming years.
The Mainland/Macau Closer Economic Partnership Arrangement (CEPA) aims to promote preferential access to the Chinese market for qualifying products, companies and residents of Macau. Supplement IX to the CEPA, which was signed recently, revises previous measures regarding the trade and investment facilitation sector in order to strengthen this area.
The Macau Special Administrative Region has seen economic growth accelerate in recent years, mainly due to the liberalisation of the gaming industry, a mainstay of the local economy. This, together with the fact that the public administration must keep pace with the latest technological advances, led to a demand for the amendment of the Commercial Registry Code.
Nine years after the entry into force of the Macau Commercial Code, the government decided to review and improve it in regard to new business needs arising from the economic development of the Macau Special Administrative Region. Among other things, the amendments promote the use of modern information technology by companies in communications with shareholders and document storage.
In 2008 a temporary Bank Deposit Guarantee Scheme was implemented which assured the reimbursement of deposits held in all banks authorised to operate in Macau, with the exception of those considered 'offshore'. Although there was no real need to resort to the scheme, the measure was deemed a success. A draft law to establish a permanent scheme has now been presented to the Legislative Assembly.
In order to address the problems arising from the large number of people working in the real estate sector who lack the necessary competence, the government recently requested that a comparative study of the legislation which governs the sector in other countries and regions (eg, Hong Kong, Taiwan and Portugal) be carried out with a view to developing a draft law to be submitted for public consultation.
The recent economic growth in Macau has led to a sharp rise in housing and office property prices. To counter the speculation in the housing market and to ensure the healthy and sustainable development of the property market, the Legislative Council has passed a bill to stabilise the housing market by introducing a special stamp duty on property and property rights transaction within two years of the transaction.
The Court of Final Appeal has clarified conflicting interpretations of the law which had been endorsed by two separate Court of Appeal judgments. The case in question related to a civil claim for damages to be deducted in a criminal proceeding. The court had to define, in a tort law situation arising from a wrongful act, the date from which the obligation becomes liquid, and hence, the date from which the debtor is in default.